What is the Endangered Species Act?

The Endangered Species Act (ESA) was enacted in 1973. Its goals are to protect plants and animals listed by the federal government as "endangered" or "threatened." An endangered species is one that is in danger of extinction. A threatened species is one likely to become an endangered species. There are two central sections:

Section 7 - Federal agencies have the duty to ensure that their actions (including issuing permits for private activities) are not likely to endanger the existence of a listed species or result in the destruction or modification of habitat.

Section 9 - It is illegal for anyone to "take" a listed animal or to significantly modify its habitat. This law also applies to private parties and private land. Landowners may not harm endangered animals or their habitats on their property.

The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Services (NMFS) enforce the ESA.

Why is the ESA Important?

The ESA is important because it has a lot of potential to affect private property interests. There are several things that the ESA does, including:

Listing - To get federal protection, a species must be added to the official list of endangered and threatened species. Someone may petition the government to list the species. The decision is based on scientific information, and the process should take no more than 27 months.

Critical Habitat - The designation of critical habitat is required. A critical habitat is an area that is essential to the conservation of the species (even those areas that are not currently occupied by the species). It is a habitat necessary for the recovery of the species.

Recovery Planning - Recovery plans are created to reverse the decline of a species and nurse back the population.

Habitat Conservation Plans - Habitat Conservation Plans are exemptions for the timber industry, real estate developers, and others. Non-federal landowners can apply for exemptions (or "Incidental Take Permits"). To receive one, they must develop a Habitat Conservation Plan to moderate their impact.

How Can I Request to List a Species as Endangered or Threatened?

The process of requesting to list a species as threatened or endangered is as follows:

Petition FWS or NMFS - Petitions are formal requests to list a species and require published findings

Service Review (90 days) - FWS or NMFS must make a finding within 90 days as to whether or not there is "substantial information" showing that a listing may be warranted

Review and Information Gathering (12 month status review) - Within one year of the petition, FWS or NMFS determines whether the listing is or is not warranted. The fate of the petition depends on the findings:

"Not warranted" - Species is not listed

"Warranted but precluded" - Subsequent one-year findings are required

"Listing is warranted" - A proposed rule is published to list in the Federal Register

Peer Review - 3 expert opinions of species specialists are solicited. Input from the public, the scientific community, and Federal and State agencies are sought. After this, a decision to list or not is rendered

Species Added to List - The final rule is published in the Federal Register and becomes effective 30 days after announcement

Do I Need a Lawyer Experienced with the Endangered Species Act?

A government lawyer who has experience with the Endangered Species Act would be able to inform you on how you can take advantage of the ESA to protect a species. A lawyer would also be able to inform you of the specifics of the law and your chances in getting a species listed.

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